Regulatory Group Autumn Newsletter

Welcome to the St Philips Regulatory Group’s Autumn newsletter.

We hope that you have managed to make the best of the Summer.

Since our last newsletter in April, members of the group have been busy advising and representing clients in a diverse array of Regulatory matters. We have noticed the courts are increasingly utilising remote hearings for non-trial work, arguably one of the positives to come from the challenges faced by the legal system during the pandemic. Meanwhile, we see court centres across the country becoming better placed to list trials; indeed, members of this group were some of the first counsel to be involved in post-lockdown trials. So, as things pick up, we thought it would be a good time to provide you will several new articles from some of our members which are sure to be of interest. First, Ben Williams discusses general principles on decisions to prosecute. Dovetailing nicely, James Puzey looks at this issue in the context of Covid-19. Lastly, Simon Davis set outs the advantages and disadvantages in bringing private prosecutions.

Enjoy and stay safe,

Jonathan Barker

Jonathan Barker is a member of the St Philips Regulatory Group and is editor of the team’s newsletter. He read law at UCL and was called to the Bar in 2006. He is recommended by the latest edition of the Legal 500 for Crime. He is on the Attorney General’s List of Specialist Regulatory Advocates in Health & Safety and Environmental Law (Band B).

To find out more about any aspect of the Regulatory Group, please contact Alan Durham (Senior Regulatory Clerk) on 0121 246 2065 or adurham@st-philips.com

The essential principle is that it is for prosecutors to decide when to prosecute. The courts will be slow to intervene. Provided that the decision is taken rationally and not capriciously, it will be secure against challenge.

The primary means by which a decision may be challenged is an application to stay the resulting proceedings as an abuse of process. Judicial Review should be sought only in exceptional circumstances, such as where there has been dishonesty or bad faith – R. v Director of Public Prosecutions Ex p. Kebilene [2000] 1 Cr. App. R. 275; [2000] 2 A.C. 326 (HL).

When application is made for a stay, it is only where abuse is plainly shown that a court should intervene.

Regard must be had by a regulator to its enforcement policies, which typically refer to or adopt the DPP’s Code for Crown Prosecutors and the essential two limb test of evidential sufficiency and the public interest.

However, in R v A [2012] EWCA Crim 434. Lord Judge CJ made it clear that, provided the exercise of prosecutorial discretion has been conscientiously undertaken, the only question for the court is whether the offence has been committed or not.

In Wandsworth LBC v Rashid [2009] EWHC 1844 (Admin), [2010] Env LR 22 the court’s finding that it would have been reasonable for the local authority to take another course of action did not mean prosecution was oppressive or therefore an abuse of process. The local authority was not required to go through each of the other possible courses of action in order to justify its decision that the course of action it had taken was lawful.

It remains open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance (R v A). Even where there has been a breach of a prosecuting authority’s clear and settled policy, the court will only intervene where to allow the proceedings to continue would bring the administration of justice into disrepute: Jones v DPP [2011] EWHC 50 (Admin); [2012] R.T.R. 3, DC.

In R (Barons Pub Co Ltd) v Staines Magistrates Court [2013] EWHC 898 (Admin), in the context of food safety and the statutory code of practice, the local authority’s failure to follow enforcement policy was found insufficient to constitute an abuse of process, the additional element of “oppression” was required in that context. The Court included within oppression a “decision to prosecute … made in circumstances that could be described as entirely arbitrary” (§48).

An example is R v Adaway [2004] EWCA Crim 2831, in which the court found that the prosecution had not given any thought to its prosecution policy: it had effectively been using the criminal courts to resolve a trade descriptions issue which ought to have been resolved in the civil courts or by mediation. The judge made findings at sentence which amounted to the grounds on which he had been asked to stay the case at the outset. The prosecution was oppressive and so ought, exceptionally, to have been stayed for abuse.

In short, regulators must make the decision whether to prosecute rationally; provided they do, they should not be worried about being second-guessed by the courts.

Ben Williams is specialist in Criminal & Regulatory law. He is ranked in Chambers & Partners as a Leading Individual and in the Legal 500 as a Leading Junior (Crime). He has extensive experience in Regulatory cases. He is on the Attorney General’s List of Specialist Regulatory Advocates in Health & Safety and Environmental Law (Band B).

“A hard rain’s gonna fall” sang the great Bob Dylan. This is surely true for UK businesses and industry over the last 6 months. These are unprecedented hard times. Every week we hear of thousands more being laid off and businesses that are going into insolvency. The law, however, grinds onwards, more slowly for sure but the regulators are still at their computer screens, if not pounding the streets. The process of enforcing the obligations created by environmental, workplace safety, trading standards, financial conduct and the whole panoply of regulatory legislation has not come to shuddering halt. There have been some changes in the mood, however.

This article considers whether the public interest test for prosecution has been changed in the regulatory context by coronavirus and whether challenges to the decision to prosecute on the grounds of public interest are more likely to succeed now. It is written from the perspective of health and safety law but the broad points hold true for other fields of regulation.

Paragraph 14.4(f) of the Prosecutor’s Code provides that proportionality must be considered when applying the public interest test. The CPS has issued “Interim CPS Case Review Guidance” to assist Crown prosecutors in their decision-making on this aspect in the present circumstances. Paragraph 9 states that:

“9. When reviewing a case and considering this question, prosecutors should do so in the context of the ongoing impact on the criminal justice system of the Covid-19 pandemic, as set out above. In particular, prosecutors should note:

• The crisis is producing an expanding pipeline of cases waiting to be heard.
• Criminal proceedings and case progression are likely to be delayed. Significant delay may impact adversely on victims, witnesses and defendants, in some cases, may reduce the likelihood of a conviction.
• Each case that is introduced into the system, or kept in the system, will contribute to the expanding pipeline and delay.”  

Guidance upon the Implementation of these paragraphs enjoins Prosecutors to consider Coronavirus as a change in circumstances which requires a decision on the impact this has had on the public interest in continuing the prosecution. The Guidance states that 

“In the majority of cases, there will be no impact at all, and the public interest will lie with continuing the prosecution. In some cases, however, prosecutors may decide to:

• Discontinue proceedings or offer no evidence.
• Offer an out of court disposal.
• Accept a guilty plea to some, but not all charges; or to a less serious offence.”

Prosecutors are specifically told to consider in the context of the inevitable delays to trials whether witnesses will still support a prosecution and come to court.  The “mood music” therefore is that Prosecutors should contemplate the effects of the strain on the criminal justice system when considering or reconsidering the public interest test and implement this by identifying and weeding out those cases that may be on the borderline in terms of the public interest.  

In terms of health and safety prosecutions the CPS guidance has been reflected in the instruction that when reviewing a case and considering the public interest HSE prosecutors “should do so in the context of the ongoing impact on the criminal justice system of the pandemic.” The HSE’s policy permits consideration of issuing a caution in “exceptional circumstances”. Coronavirus is now recognised as one such circumstance if deemed appropriate. 

However, the guidance reminds prosecutors that the pandemic is only one of many factors to consider before commencing or continuing a prosecution.

The HSE operates an Enforcement Policy Statement (“EPS”) and Enforcement Management Model (“EMM”). The former sets out guiding principles for enforcement action and reiterates five relevant factors in decision-making, namely: proportionality, targeting, consistency, transparency and accountability. The EMM provides the detailed framework to enable inspectors to take decisions in accordance with the principles of the EPS. Strategic factors such as the public interest must be considered.

Paragraph 106 of the EMM provides:

“When considering public interest, inspectors are looking to satisfy themselves that the proposed action will produce a net benefit to the wider community in terms of reducing risks, targeting public resources on the most serious risks and the costs of pursuing a particular course of action.” 

The recent case of R (HSE) v Connors Building and Restoration Ltd. [2020] EWCA Crim 868 saw an appeal against conviction by a company prosecuted in relation to a workplace accident. The Company had sought to dissuade the HSE from prosecuting it with submissions that prosecution would not be a proportionate response pursuant to the EPS and EMM because the Defendant had a single customer, Scottish Power, that would not renew its contract if the company was prosecuted. Therefore it would become insolvent and 40 people would lose their jobs. The HSE considered these representations but prosecuted nonetheless. The Company appealed its conviction on the grounds that the Judge at first instance had wrongly rejected a submission of abuse of process on the same grounds, i.e. the prosecution was disproportionate under the EPS and EMM, it was oppressive and Wednesbury unreasonable.

The Company’s appeal was dismissed. Flaux LJ reiterated the long-established position that it was “only in exceptional cases will the Court disturb the decisions to prosecute of an independent prosecutor” and this was not such a case. With independent prosecutors such as the HSE it was not enough to show they had breached their own policy. The Appellant had to go on to show misconduct or oppression of the type found in Bennett [1994] 1 AC 42. The same standard of review was required over decisions by independent prosecutors such as the HSE as for the CPS. Hence there was no wider standard of review by the HSE that encompassed a rule that a decision in breach of an internal prosecution policy was automatically abusive. 

The Appellant pursued its appeal on the grounds that wholly inadequate regard had been given to the business consequences of a prosecution and that the HSE had failed to pursue the least burdensome enforcement action. Paragraph 1.2 of the EPS states that the HSE will have regard to economic growth and the impact that its decisions were likely to have on business. The Court concluded however, that consideration of these factors could not form the basis of an attempt to impugn a decision to prosecution in the absence of oppression. In any event, the Company had failed to show on the facts that the HSE had breached its own policy or that the economic consequences of prosecution were as dire as were predicted. 

This case illustrates the point that whilst financial considerations are always relevant to mitigation it would be virtually impossible, in the absence of oppression by a prosecutor, to succeed before a Court on an abuse submission on the grounds that the decision to prosecute would cause financial hardship and is therefore disproportionate.

James Puzey specialises in Government litigation, particularly in the fields of Tax and Health and Safety law. He is ranked in Chambers & Partners as a Leading Individual and in the Legal 500 as a Leading Junior. He is on the Attorney General’s List of Specialist Regulatory Advocates in Health & Safety and Environmental Law (Band A).

A Private Prosecution (‘PP’) may be seen as just ‘another tool in the tool box’ but it is ‘also essential that the tool should be used in the right way’. In certain circumstances, a PP may be an extremely powerful mechanism by which your client can achieve the result he desires. However, it should also be remembered that ‘one size may not fit all’ and a PP may be inappropriate in certain circumstances. The context in which it is to be deployed will vary according to each individual case.

Clients regularly ask me to advise them on the merits of a PP. Invariably, there are civil remedies available to them. However, in some cases, the ‘Defendant’ may have over stepped the mark and the client wants to know whether there is anything more that can be done. More often than not they don’t know what a PP involves – they want to know what are the advantages and the disadvantages. Inevitably, they also ask whether a PP can/should run concurrently with a commercial claim or as stand- alone proceedings. These questions all depend on the facts of a given case.

A PP is simply a criminal case brought by a private individual or entity in the Magistrates Court or Crown Court. They aren’t a new thing. PPs are longstanding and have been described as “a safeguard against the wrongful refusal or failure by public prosecuting authorities to institute proceedings”. They can include most offences to be found in the criminal text book, ranging from data theft, assault, fraud by false representation and perverting the course of public justice to name but a few criminal offences regularly pursued in PPs.

However, to be noted – a PP is to punish those who have committed a criminal offence/s and not to gain a financial advantage nor should a PP be used as a means to negotiate a financial settlement.

So, why would your client want to start a PP? There are any number of reasons to do so which can include sending out a powerful message across the client’s industry that they won’t stand being defrauded: to provide a means by which the client can seek and obtain redress where the public authorities may be unwilling/unable to assist; to obtain compensation for the client or to set a precedent to prevent future misconduct.

As a general rule of thumb, a PP can be started by a private individual or entity who/which is not acting on behalf of the police or other prosecuting authority. It requires little work from the client so long as he has instructed a competent legal team which is well versed in prosecution work.

There are no specific rules governing the way in which PPs are started or conducted. However, adherence to rules adopted by the Crown Prosecution Service^[1] or the recently formulated Code for Private Prosecutors^[2] will stand you in good stead.

So, what are the advantages to PPs ? In my view, they include the following:-

• They proceed where, often, the relevant state authority lacks resources and/or the will to prosecute
• They are almost always quicker
• They can be more focussed and more efficient than public Prosecutions especially in fraud cases
• They can be cheaper than proceedings in the High Court
• They can provide remedies for those who have suffered harm – economic or physical
• The prosecutor has more control over the speed of the investigation and timing and execution of the proceedings
• The prosecutor may deploy specialist expertise to which some prosecuting authorities do not have access, thereby increasing the chances of success
• Where the Prosecution has succeeded, it is possible to utilise any conviction in civil proceedings (section 11 Civil Evidence Act 1968) and also initiate confiscation and compensation proceedings
• They can be employed where the local police lack the resources, understanding and/or prioritisation for such cases
• Cost ‘out of central funds’ may be awarded to the prosecutor pursuant to section 17(1) POA 1985 – ‘the court may award a prosecutor such amount out of central funds as it considers reasonably necessary to compensate him for any expenses properly incurred by him in the proceedings’. This applies whether or not the Defendant is convicted but only applies to indictable offences. This is of considerable value to Private Prosecutions

The application of the criteria for awarding costs to a private prosecutor can be found in the case of R(on the application of Virgin Media Ltd) v Zinga [2014] EWCA Crim 1823. In that case, a number of factors were considered, namely steps taken to involve state prosecuting authorities: the relevant market and the much greater flexibility in the way in which work was done, together with Ministry of Justice guidance ; the reasonableness of costs incurred was to be judged by reference to the conduct of the case; the nature of the issues before the court; and comparable market rates charged for similar work. The case also highlighted the fact that the court may also limit costs recoverable by a private prosecutor where his conduct was improper (ie using the proceedings as a lever to negotiate a civil claim).

So, what are the disadvantages to PPs? In my view, they include the following :-

• whether the prosecutor (i.e. the Complainant in a fraud) lacks the required objectivity and insight inherent in proceedings brought by the state. My suggested remedy would be to incorporate what you would usually expect in any state led Prosecution by instructing professionals who are experienced in Prosecution work
• whether the prosecutor has the required expertise to conduct the proceedings. Again, my suggested remedy is the same as above – instruct professionals who are experienced in Prosecution work to conduct the proceedings
• whether the DPP/CPS ultimately take over the case. My view is that this may be disappointing for a number of reasons (eg the desire of the private prosecutor to see the proceedings through to the end) but it is also the ultimate safeguard for the client and can reduce cost
• whether the Private Prosecutor will recover his costs. My suggested remedy would be to make an application for costs out of central funds where a Prosecution is conducted appropriately and properly.

To highlight one of the advantages, here’s a simple short case scenario – your commercial client has a number of potential civil actions against a Defendant arising out of breaches of contract and fraudulent misrepresentation. One of the misrepresentations passes the threshold for criminal proceedings to be initiated. Your client decides to prosecute the Defendant for the simple ‘slam dunk’ misrepresentation pursuant to section 2 of the Fraud Act 2006. If/when convicted, you plead the conviction in the civil proceedings pursuant to section 11 CEA 1968. Would the civil proceedings then be so long and expensive where you have successfully proved the Defendant to be a fraudster to the criminal standard of proof?

It’s tempting to suggest that that scenario happens regularly but that using a PP is never on the radar. Therefore, in my view it is always worthwhile scoping out the case with a potential PP in mind as it will give the client access to the full range of tools in the proverbial toolbox.

I have been involved in the following types of PP most of which had concurrent or anticipated commercial proceedings:

• Fraud on Kazakhstan national – events taking place in Kazakhstan, Hong Kong and the West Midlands. Defendants based in Kidderminster. Multi £m fraud
• Fraud by directors of limited company who entered into an arrangement with Lithuanian national to invest in their company – £400k
• Fraud by CEO enticing investors to purchase share stock by inflating company valuation – Multi £m fraud
• Fraud by directors of limited company where hire agreements in place – directors sold the stock, continued to meet some hire premiums and then had to come clean – £300k
• Employee of Multi national company – summarily dismissed and stole data as they went
• Fraudulent charter of freighter between the Caribbean and the Far East where one of the parties was based in London. Multi £m fraud

Simon Davis is specialist in Criminal & Regulatory law. He is ranked in the Legal 500 as a Leading Junior (Crime). Simon is an experienced and seasoned advocate with over twenty years’ court room experience. He has experience in advising on and appearing in private prosecutions.